Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001370

Original file (ND1001370.rtf) Auto-classification: Denied

ex-BUCA, USN

Current Discharge and Applicant’s Request

Application Received: 20100430

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        20000428 - 20000716     Active:

Period of Service Under Review:
Date of Current Enlistment: 20000717     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040611      Highest Rank/Rate: BUCN
Length of Service : Y ear ( s ) M onth ( s ) 25 D a y ( s )
Education Level:        AFQT: 54
Evaluation M arks:         Performance: 4.0 ( 4 )      Behavior: 3.8 ( 4 )        OTA: 3.58

Awards and Decorations ( per DD 214):      Rifle , , , , ,

Periods of UA /C ONF :

NJP:
- 20040219 :      Article ( Wrongful use, possession, etc of a schedule II controlled substance - amphetamines )
         Awarded: Suspended:

SCM:     SPCM:    C C :      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ PRESIDENTIAL UNIT CITATION, NATIONAL DEFENSE SERVICE MEDAL, NAVY BATTLE “E” RIBBON, MARKSMAN RIFLE RIBBON, SEA SERVICE DEPLOYMENT RIBBON, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, GOOD CONDUCT AWARD ”

         “ MISCONDUCT ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed
Related to Military Service:
         DD 214:          Service/ Medical Record:          Other Records:
Related to Post-Service Period:
         Employment:               Finances:                 Education/Training:
         Health/Medical Records:          Rehabilitation/Treatment:                  Criminal Records:
         Personal Documentation :          Community Service:                References:
         Department of VA letter:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until
28 April 2005, Article 1910-146, SEPARATION BY REASON OF MISCONDUCT - DRUG ABUSE.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

C. United States Code, Title X, Section 1553 (d) as amended and codified into public law ( Post-Traumatic Stress Disorder or Traumatic Brain Injury special considerations ) .

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1. Nondecisional Issues: The Applicant seeks an upgrade in the characterization of her service in order to facilitate better op portunities for employment.

2. Decisional issues : (1) The Applicant contends that her misconduct of record was an isolated incident in 46 months of what was otherwise honorable service. (2) The Applicant contends that she suffered from Post - Traumatic Stress Disorder (PTSD) , which she contends resulted in h er one time lapse in judgment.

Decision

Date: 20 1 1 0812 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

In accordance with U.S. Code, Title 10 , Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist . In accordance with section 1553 (d) (2), the service secretary expedited a final decision and accorded the case sufficient priority to achi eve an expedited resolution.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. T he NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety. The Applicant’s enlistment record reflects entry into military service at age 18, with out waiver to enlistment standards . The Applicant enlisted on a contract for 4 years (without extension) of active duty military service. The Applicant acknowledged h er complete understanding of the Navy Policy Concerning the Illegal Use of Drugs, in writing, as a condition of h er enlistment process on 27 April 2000 . The Applicant’s service record documents that s he is a combat veteran , having served honorably in Kuwait while supporting Operation IRAQI FREEDOM in 2003 as a camp constructionman and while serving in a guard capacity at a camp entry control point. The Applicant’s record of service does not reflect any NAVPERS 1070/613 retention-counseling warning s , but does contain one nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 112(a) ( W rongful use, possession, etc of a schedule II controlled substance, amphetamine ). Based on the Article 112(a) violation, processing for administrative separation from the service was mandatory.

The NDRB was unable to review the Applicant’s entire discharge package to ensure the Applicant was afforded all rights, as require d by the Naval Military Personnel Manual (MILPERSMAN); as such, the presumption of regularity in governmental affairs was applied by the Board. T he Applicant was notified - in writing - of the Command’s intent to process the Applicant for administrative separation for Misconduct (Drug Abuse) in accordance with A r ticle 1910-146 of the MILPERSMAN . The Applicant was advised further that the least favorable characterization of h er service at discharge was Under Other Than Honorable Conditions . Based on the Applicant’s DD Form 214 separation code, she waived her right to an administrative discharge hearing board. After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed reasons for discharge. He reviewed the chain of command’s recommendations for a General ( Under Honorable Conditions ) characterization of service and determined that it was warranted. On 04 June 200 4 , the Separation Authority directed the Applicant ’s discharge with a General (Under Honorable Conditions) characterization of service due to Misconduct (Drug Abuse); he further directed that t he Applicant be assigned an RE-4 re-entry code (not re commended for reenlistment).

The Applicant provided additional documentation in the form of a Compensation and Pension (C&P) r eview examination conduct ed by the Department of Veterans Affairs (VA) for the NDRB’s consideration . The Applicant’s personal statement to the NDRB included a contention that s he was diagnosed with and suffer ing from the effects of what s he believed was PTSD .

(Nondecisional Issue) The Applicant seeks an upgrade in the characterization of her service in order to facilitate better opportunities for employment. This is an issue which the NDRB cannot form a basis of relief for the Applicant, or the NDRB does not have the authority to grant the relief for which the Applicant petitioned. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities or providing access to VA educational benefit programs. Regulations specifically limit the NDRB’s review to a determination of the propriety and equity of a discharge. Additionally, there is no law, or regulation, that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Nondecisional issue, no action taken.

( Decisional Issues) ( ) . The Applicant contends that her misconduct of record was an isolated incident in 46 months of what was otherwise honorable service. Moreover, the Applicant contends that she suffered from PTSD, which she contends resulted in her one time lapse in judgment. The Applicant was separat ed administrative ly in accordance with Article 1910-146 of the MILPERSMAN - Misconduct (Drug Abuse) . The Applicant does not contend that she did not use the illegal drugs. Processing for administrative separation for illegal drug use was mandatory by service policy . The Applicant did not contest the separation action and waived h er right to defend h er self at an administrative board hearing. Based on the documentation of record, the NDRB determined that the separation was proper and the narrative reason for separation was accurate. A change in narrative reason for separation would be inappropriate. No relief based on propriety of the discharge action is warranted.

Equity - The Applicant contends that her misconduct of record was an isolated incident in 46 months of what was otherwise honorable service. Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order and discipline. Violation of Article 112(a) is one such offense requiring mandatory processing for administrative separation, regardless of grade, combat experience, or time in service. This action usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant failed a random urinalysis test; her results identified the presence of amphetamines in her system. The command did not refer the Applicant for a court - martial but opted instead for an administrative discharge. In the Applicant’s application for a review of h er discharge, s he contends that she was diagnosed with PTSD. As such, the NDRB reviewed the Applicant’s record of service to determine if PTSD may have been a contributing factor for the Applicant’s misconduct of record. The government enjoys a presumption of regularity in the conduct of its affairs; the Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support h er issue. The NDRB reviewed the Applicant’s service medical records and post-service VA medical records. A fter an in - depth review, there was no diagnosis nor any indications of PTSD found in the record. While in service, the Applicant was treated for extensive complaints of general pain, primarily in her hi ps. She was placed in Limited D uty status for eight months and was again extended on Limited Duty after a local med ical board was held , whereupon she returned to full duty . While in service, the Applicant was also diagnosed with g eneral a nxiety, d epression, alcohol abuse , and ultimately, drug abuse . Post-service, the Applicant received a C&P review examination by the VA , which diagnosed Major Depressive Disorder, Recurrent ( s ever e , without psychotic features ) , Generalized Anxiety Disorder , and alcohol abuse. Though her conditions did arise during her service, she was determined not to be suffering from P TSD. Without further documentary evidence of PTSD, the NDRB cannot form a basis of relief regarding this issue.

Characterization of service at discharge is the recognition of a Sailor’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duties outweighs the positive aspects of the member’s military record. Based on the evidence of record, the NDRB determined that the Applicant willfully and deliberately violated Article 112 (a) and that the Applicant’s conduct, which forms the primary basis for determining the character of her service, did reflect a significant departure from that conduct expected of a service member . The Applicant’s misconduct outweighed the positive aspects of her military record ; as such, the awarded characterization was appropriate, was equitable, and did not exceed the characterization of discharge normally received by others in similar circumstances. Accordingly, an upgrade would be inappropriate. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service and medical record entries, and discharge process, the NDRB determined that Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn: Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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NAVY | DRB | 2010_Navy | ND1001370

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